Recognition and Enforcement of Foreign Court Judgments and Awards in Turkey

by in Genel

The issue of recognition and enforcement of foreign court judgments and arbitration awards in Turkey is one of the most vital final key points in international transactions in case the object of the transaction (i.e. the aircraft, goods, assets of debtor, marriage) is situated and the defendant or debtor having its assets and principal place of business in Turkey when the time comes to regaining of the title or to enforce any foreign court judgment or award. The recognition and enforcement of foreign court judgments and awards have been regulated by the Act Regarding International Private Law and Procedure, Act Number 5718, enacted on 27 November 2007 replacing the Act Number 2675, dated 20.05.1982 .

Turkish Courts recognize and enforce foreign judgments under the provisions of abovementioned Act Number 5718. The requirements of granting an recognition for a foreign judgment or award are stipulated in the Articles 50-63 of the said Act. We must state that recognition and enforcement are distinctive concepts. Therefore some requirements are not sought for recognition whereas they are sought for the enforcement process by the Turkish courts. The only requirement is the one which is reciprocity.

  • Existence of a judgment rendered by a foreign court regarding a civil law case. An enforcement decision may also be sought in respect of personal rights granted in penal judgments of foreign courts.
    Art. 50/1 set forth that only the foreign court judgments rendered regarding civil law cases, which have been final according to the law of the state of the court shall be subject for a recognition and/or enforcement process before the courts of Turkey. Hence, payment orders as well as other foreign enforceable titles cannot be subject for a recognition or enforcement process before a Turkish court pursuant to the provisions of this Act. The judgment or arbitration award should be final and enforceable under the law of the state wherein it was rendered.

The foreign judgment, for which an recognition is sought, must be final and enforceable judgment under the law of the state wherein the judgment was rendered. The finalization of foreign court judgment or arbitration award is required in respect of both substantial and procedural aspects. The wording and attestation of the court officials indicating that the judgment has been final under the wording “This judgment has been finalized” shall be sufficient for the requirement of Turkish Private International Law and Procedure in order to make a recognition of a finalized judgment.

  • Existence of reciprocity between Republic of Turkey and the state where the judgment was rendered for the recognition and enforcement of judgments.
    The reciprocity is considered to have been realized in three ways under Turkish Law. The first way is the existence of a treaty between Turkey and the state wherein the court judgment or award has been rendered as final. Presently Turkey has bilateral treaties with Austria, Romania, Italy, Azerbaijan and Turkish Republic of Northern Cyprus on the reciprocal recognition and enforcement of the court judgments or awards rendered by the courts or arbitration tribunals in the jurisdictions of contracting parties of the reciprocity treaties.(Article 54/a)

The second way is establishing the existence of a legal provision allowing the recognition and enforcement of a judgment or award rendered by courts and tribunals of the Republic of Turkey in the legislation of the state wherein the court judgment or award were made.

The third and the most widely enhancing way is to determine whether a de facto reciprocity exists in the state wherein the judgment or award was rendered. If the actual practice in the state wherein the court judgment was rendered, is to recognize and enforce the judgments rendered by the courts of the Republic of Turkey, then the judgments of the courts of the said state will be recognized and enforced in Turkey.

  •  Non-existence of a Turkish Court’s exclusive jurisdiction under Turkish law over the subject matter of the judgment.
    According to the provision of Article 54/b of the Act, the judgment should have been rendered on a subject which does not fall under the exclusive jurisdiction of the courts of the Republic of Turkey or should not have been rendered by the court of a state that has no real connection with the disputing parties or the subject matter in dispute provided that the defendant has objected to the jurisdiction of the court.

The judge who will decide on the enforcement of a foreign judgment, does not examine the jurisdiction of the court that built the judgment. The said Article implies that the enforcement of foreign court’s judgment shall be rejected if it falls within the exclusive jurisdiction of Turkish courts.

The general opinion in jurisprudence is that every jurisdiction which is accepted to be exclusive in respect of the national law shall not result its acceptance in the international practice. Hence, the exclusive jurisdiction of Turkish courts in the issues related to immovables located in the territory of Turkey is clear and furthermore the Supreme Court of Turkey has stated in its various decisions that Turkish Courts have had the exclusive jurisdiction in the matters being subject to the actions in rem. Thus, any demand for the enforcement of a foreign court judgment regarding the actions in rem shall be rejected on the grounds of exclusive jurisdiction of Turkish courts.

  •  Provisions about Enforcement of Foreign Decisions and The Procedure of Enforcement
    The procedure of enforcement is regulated between Art.50-57 of Law numbered 5718. According to the Art.50 to demand enforcement, firstly the existence of foreign court’s decision is needed and this decision has to be approved in accordance with the Law of that country where the Court decision is taken. In the same Article of the Law another condition is requested which is the decision must be given regarding to a civil action. Thereby only a decision given regarding to a civil action can be the matter in dispute of enforcement case. Once again in the Art.50 of the Law numbered 5718 about the clauses regarding personal rights in the criminal decisions, enforcement judgment can be demanded.

At this point, the issue of which court will be competent and in charge to execute enforcement contraption, has to be discussed. Thus, under the Art.51 of Law numbered 5718 this issue is regulated with the topic of “Competence and Jurisdiction”. According to the article, in enforcement cases civil courts of general jurisdiction are in charge. In the same article it is regulated that courts in the same place of the person’s domicile in Turkey, against whom enforcement is demanded are competent. If the person doesn’t have a domicile in Turkey, the courts of the place of person’s residence will be competent. If still the person doesn’t have a residence in Turkey, the courts of Ankara, İstanbul or İzmir will be competent. According to the Art.52 of Law numbered 5718 everyone who has legal interest can demand enforcement with a petition. The samples of petitions accordingly the number of parties must be added.

Again in accordance with the Art.52 these issues must be written in the petition:
a) Names, surnames and the addresses of the person who demands enforcement, adversary’s and also legal representative’s and attorney’s if there is any,
b) The issue of by which state’s court the decision given and the name of the court, the date, number and the summary of decision.
c) If the enforcement is demanded about just a part of the decision, which part it is.

Art.53 of the Law is regulating the documents that must be added to the petition, these documents are:
a) The original and the copy of the decision approved by the court according to the procedure and approved translation.
b) A writing or a document approved by state’s posts according to the procedure improving that the decision is effective and its approved translation.
According to the Article above the Law numbered 5718 require the original and the copy of decision approved in accordance with the procedure. The approval according to the procedure means that the decision contents the endorsement of apostile (http://en.wikipedia.org/wiki/Apostille_Convention). This endorsement serves the recognition of a document arranged by a foreign institution, in another country. Countries which are contractor of Convention of La Haye dated 1961 are editing endorsement of apostile to provide recognition to a document arranged by their own, in another country which is also contractor.

In the Law numbered 5718 the conditions required for an enforcement decision is regulated under the Article 54. According to the article:
– The presence of a convention based on reciprocity principle, a provision or an actual implementation, between the State at which the decision given and Turkey,
– The decision shouldn’t be about an issue regarding the Turkey’s exclusive competence
– The decision shouldn’t be given by a court that defines itself authorized but not authorized actually because of being disinterested about the matter in dispute or the parties, in condition of being reclaimed by one the parties.
– The decision shouldn’t be in conflict with public order.
– If, up against the person of whom the enforcement is demanded, is not invited to the court in accordance with the procedure or is not represented in the court or in conflict with these laws the award is given in his/her absence and the person don’t reclaim one of these issues in front of Turkish courts that will decide the enforcement

In accordance with the Law numbered 5718 Art 56, the authorized court will give an award of enforcement or not, it can also give an award of enforcement for a part of foreign court’s decision. In case of decision of enforcement, according to Art.57 of the Law, the decision of the foreign court will be legally equal to a decision of Turkish courts and will be dependent on execution provisions. As it is regulated in the same article the decision of refusal or acception can appealed in accordance with general provisions.